Notre Dame Law Review Volume 82 Article 2 Issue 1 Federal Courts, Practice & Procedure 11-1-2006 Habeas Corpus, Suspension, and Detention: Another View David L. Shapiro Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L. Rev. 59 (2006). Available at: http://scholarship.law.nd.edu/ndlr/vol82/iss1/2 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. HABEAS CORPUS, SUSPENSION, AND DETENTION: ANOTHER VIEW David L. Shapiro* "The Privilege of the Writ of Habeas Corpus shall not be sus- pended, unless when in Cases of Rebellion or Invasion the public Safety may require it."' INTRODUCTION The Suspension Clause, as the quoted language is generally de- scribed, is as straightforward as an English sentence can be. And to those familiar with the Great Writ,2 its meaning, at least at first read- ing, does not seem obscure. Yet few clauses in the Constitution have proved so elusive. Schol- ars have debated a remarkable range of questions about its meaning ever since its inclusion in the text submitted to the states for ratifica- @ 2006 David L. Shapiro. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * William Nelson Cromwell Professor of Law, Emeritus, Harvard University. My deepest thanks to Bruce Hay, Dan Meltzer, and Amanda Tyler for their insightful comments and suggestions on earlier drafts. I U.S. CONST. art. I, § 9, cl. 2. 2 The writ of habeas corpus has many varieties and purposes, all involving the literal (or, later on, figurative) production of a detainee before the court, and some forms of the writ have developed more recently than others. For the range and forms of its current use, see BLACK'S LAW DICTIONARY 728 (8th ed. 2004). For informative histories of the evolution of the writ, see, for example, WILLIAM F. DUKER, A CONSTITU- TIONAL HISTORY OF HABEAS CoRPus (1980); ROLLIN C. HURD, A TREATISE ON THE RIGHT OF PERSONAL LIBERTY, AND ON THE WRIT OF HABEAS CORPUS (Albany, W.C. Little & Co. 1858); ROBERT S. WALKER, THE CONSTITUTIONAL AND LEGAL DEVELOPMENT OF HABEAS CORPUS AS THE WRIT OF LIBERTY (1960). The most significant form of the writ, and the one most relevant to the meaning and application of the Suspension Clause, has been known before and since adoption of the Constitution as the writ of habeas corpus ad subjiciendum, the form designed to test the lawfulness of the petitioner's detention. It is the form sometimes referred to as "The Great Writ." NOTRE DAME LAW REVIEW [VOL. 82:1 tion, and some of the most difficult of these have yet to be resolved by the Court that regards itself as the final arbiter of constitutional dis- putes. 3 Any list of the most significant of these questions would surely include: 0 Does the Clause impose on the federal government not only an explicit prohibition (subject to explicit exceptions), but also an im- plicit obligation? " If it does, what is the nature of the obligation? " Which branch or branches of the federal government have au- 4 thority to suspend the writ? " What constitutes a "suspen[sion]" of the writ? " Is the decision by an authorized branch of the government to suspend the writ subject to judicial review, and if so, under what standard? e What are the consequences of a valid suspension of the writ? In particular, does a suspension simply render unavailable a particular remedy, or does it modify or abrogate any otherwise existing rights? Given the historical and present value of the writ as a safeguard of individual liberty, every one of these questions can have profound im- portance, especially in a time of national crisis, and each will be ad- dressed, at least briefly, in this Article. Indeed, to separate out any one for completely independent consideration would challenge even the most artful of lawyers-a clan that, it is said, possesses the special skill of separating the inseparable. But my principal focus will be on the last question-the conse- quences of a valid suspension. This question, in itself, raises challeng- ing issues about the nature of law and the relation between rights and remedies-issues that intrigue legal theorists at any time but that, at 3 The debate about the relative roles of the three branches of the federal govern- ment in interpreting the Constitution is a continuing one. See RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAIRO, HART AND WECHSIFR's THE FEDERAL COURTS AND THE FEDERAL SYSTEM 88-92 (4th ed. 1996). (Space limitations compelled the unfortunate omission of this material in the next edition.) But there is little doubt that the Court today views its role-limited only by the doctrines ofjurisdiction and justiciability-as that of final arbiter of the meaning and application of the Con- stitution. See, e.g., United States v. Nixon, 418 U.S. 683, 704-05 (1974); cf. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (rejecting state officials' claim that they had no enforcea- ble duty to comply with federal court orders resting on the Supreme Court's interpre- tation of the Constitution). 4 Although lawyers and judges generally speak of suspension of the writ, the text actually refers to suspension of"Iitlhe Privilege of the Writ." U.S. CONST. art. 1, § 9, cl. 2. There may be a difference between the two phrases, but for convenience, the shorter form will be used here. "I SUSPENSION, AND DETENTION 20061 HABEAS CORPUS, of law by criminal and civil this writing, may also affect the practice and the fates of prisoners. rights lawyers, the decisions of judges, is a recent article by My point of departure, in some respects, argues that a valid suspension Professor Trevor Morrison in which he the power to grant habeas serves only to withdraw from the courts any underlying constitutional corpus but does not modify or abrogate 5 that while such a result is not im- (or other legal) right. My view is either the essence of the Great plausible, it cannot be squared with of the Suspension Clause. Writ or with a proper understanding those who would resist This conclusion may jar, or even offend, that would appear to threaten any interpretation of the Constitution at least some of these critics basic liberties. But I hope to convince to the needs of government in that the interpretation I advocate is fair as a limited authorization of the crisis and-if properly understood times of urgent need-is at the exercise of extraordinary power in of individuals as such a crisis same time as protective of the rights of Morrison's position could reasonably permits. Indeed, adoption the objective envisioned by the nullify, or at least severely undermine, granting of authority to suspend. I. PRELIMINARY ISSUES is worthy of at Each of the questions posed in the Introduction some consideration of least brief discussion in this Article. Moreover, an understanding of the major each is proper, if not necessary, to question under consideration here. A. The Question of Obligation law writ referred to in the Habeas corpus is the only common only as a conditional prohibi- Constitution, and the reference appears In the absence of a specific tion on the exercise of federal authority. or any other clause of the grant of authority, then, can this Clause, existence of authority to grant Constitution, be read to mandate the simply that the federal govern- the writ? Or does the Clause mean as Authorization?, 91 Hamdi's Habeas Puzzle: Suspension 5 Trevor W. Morrison, of the the many other scholarly discussions L. REv. 411, 415 (2006). Among CORNELL on the central issue in the one that touches most closely Suspension Clause, perhaps War on of Habeas Jurisdiction and the Global essay is James E. Pfander, The Limits this discussion of a closely re- L. REV. 497 (2006). And for insightful Terror, 91 CORNELL Dimensions: A Transac- Kontorovich, The Constitution in Two lated problem, see Eugene Eugene Remedies, 91 VA. L. REv. 1135 (2005); tion Cost Analysis of Constitutional 56 Rights: The Case of Mass Detentions, Kontorovich, Liability Rules for Constitutional Kontorovich, Liability Rules]. STAN. L. REv. 755 (2004) [hereinafter [VOL, 82:1 ...... n**A * Aw REVIEW 62 NOIRE 0 E W( REVIEW from denying the abil- ment is barred (with the specified exceptions) United States that has been ity to grant the writ to any court in the or positive law? If the latter, given that authority either by common judiciaries from federal intru- perhaps the Clause simply protects state to entertain and to grant a sion on whatever power they may have 6 habeas petition. not only in the lan- support for this view may be found Textual of delegated but in its location-not in the list guage of the Clause in Section 8 of Article I, but in a list of prohibitions powers in Section not a right.8 And Moreover, the writ is referred to as a "privilege," 9.7 from the for the narrower view may be garnered historical support of the draft did contain an affirmative guarantee facts that an earlier observers of the writ, and that at least some contemporary availability submitted for or assumed that the final version apparently thought 9 ratification contained no such guarantee.